Ethics in Governments

There’s an interesting and potentially important decision by the S.Ct. that came down on June 13, Nevada Commn. on Ethics v. Carrigan. Carrigan was an elected official of a City Council.

The opinion dealt with a Nevada statute that requires public officials to recuse themselves from voting upon or advocating a matter with respect to which the independence of a reasonable person in his situation would be materially affected by, inter alia, "his commitment in a private capacity to the interests of others." The phrase "commitment ... to others" is defined, in part, as a commitment to a person who employs the officer or a member of his household, or has a substantial and continuing business relationship with the officer." A catchall then adds "any other commitment or relationship that is substantially similar" to one of those specified.

The Nevada Supreme Court struck down the statute as a violation of the First Amendment. The S.Ct., in an opinion by Scalia, joined by seven justices, reversed. Kennedy also filed a concurring opinion, and Alito concurred in part and dissented in part.

Scalia held that even if Carrigan had a First Amendment right to advocate and vote on issues before the Council, "his exclusion was a reasonable time, place and manner limitation." But he did not have such a right, because conflict-of-interest recusal rules are not protected speech, any more than obscenity or fighting words. We know that, he reasoned, because, beginning in 1789, the Congress has enacted such recusal rules.

Scalia noted that Federal conflict-of-interest rules applicable to judges also date back to the founding, beginning in 1792. That first law required district court judges to recuse themselves if they had a personal interest in a suit or had been counsel to a party appearing before them. In the course of listing similar statues, Scalia mentions Liteky v. U.S.

Perhaps significantly, though, he specifically mentions sec. 144 (personal bias or prejudice), which was adopted in 1911, but not sec. 455, which was substantially amended in 1974 to include a requirement of recusal, in subsection (a), when the judge’s impartiality "might reasonably be questioned" – that is, going beyond an allegation of actual bias or prejudice. What that might mean in future 455(a) cases is left to speculation.